Murlidhar vs State of Rajasthan and Others

M.N. Bhandari, J.—By this criminal misc. petition, a challenge is made to the order dated 8.11.2013, whereby, application under section 319 CrPC filed by the non-petitioner No. 1-Gaindi Devi was allowed. The revision petition against the said order was dismissed on 20.1.2014.

Learned counsel for the petitioner submits that on a complaint against 6 persons, investigation was made and charge sheet against 5 accused was filed leaving the petitioner. The non-petitioner filed an application under section 190 CrPC for taking cognizance of the offence against the petitioner as well. The said application was disposed of by the court. The charges were framed against 5 persons followed by trial. Statements of some witnesses were recorded. The complainant then filed an application under section 319 CrPC for taking cognizance against the petitioner. The application aforesaid was allowed by the learned Additional Chief Judicial Magistrate (Sr Div) No. 2, Sri Madhopur, Sikar in ignorance of the material on record. The evidence was not to the effect which may lead to conviction, if remains unrebutted. In absence of it, there was no occasion for the trial court to allow the application under section 319 CrPC. The revisional court also committed same illegality while dismissing the revision. Reference of the judgment of the Delhi High Court in the case of Anand Sharma Vs. State, (2003) CriLJ 1057 : (2002) 101 DLT 297 has been given.

Per contra, learned counsel submits that the application under section 319 CrPC has been allowed after considering evidence and the material available on record. It is after proper discussion of the facts. Earlier, the application under section 190 CrPC was not dismissed or disposed of but kept pending for an order at the appropriate stage. The fact regarding disposal of the application under section 190 CrPC is not correctly given by learned counsel for petitioner.

It is also stated that the act of the petitioner for commission of offence has been discussed by the court below and thereupon only, cognizance of offence was taken. The petitioner is one who had presented the original copy of the agreement to sell and then substituted it by photo copy by taking original. The act aforesaid was found to be sufficient to make out offence under sections 420, 467, 468, 471 and 120B IPC. Accordingly, impugned orders may not be interfered.

I have considered rival submissions of the parties and perused the record.

It is a case where after complaint, FIR was lodged and after investigation, charge sheet was filed against 5 accused leaving the petitioner. An application under section 190 CrPC filed by the non-petitioner was kept pending looking to the stage. It was neither dismissed nor disposed of as is coming out from the order, thus it is not correct to state that the application under section 190 CrPC was disposed of by the court below. After the application under section 190 CrPC, charges were framed against 5 accused, followed by trial. Statements of many witnesses were recorded and, thereupon, application under section 319 CrPC was filed for taking cognizance of the offence against the petitioner. Learned trial court passed a detailed order while taking cognizance of offence. Therein, the application submitted by the complainant Gaindi Devi, on 26.3.2004 before the ACM Court and the order sheet dated 31.3.2004 was considered. It is apart from the application and order dated 1.4.2004.

So far as application of Gaindi Devi dated 26.3.2004 is concern, it is available along with the charge sheet and is part of evidence. In the said application, allegation was that without execution of agreement to sell, a photo copy of it was filled and thereafter, certified copy of the agreement was taken by the petitioner. The ACM Court however asked the petitioner to produce original agreement to sell by 27.3.2004. The order sheet was duly signed by the petitioner. The next order sheet is dated 31.3.2004, which shows production of original agreement to sell. The aforesaid order sheet does not contain signature of the petitioner but production of original agreement to sell is shown as per direction. If Both the order sheets, are read together, show that as per the directions by the trial court, original agreement to sell must have been produced by the petitioner.

The subsequent application dated 1.4.2004, has not been exhibited thus can not be taken into consideration. If it is not a document exhibited and even if it shows that petitioner made an application to take the original agreement to sell by replacing it by photo copy, to that extent, consideration of the application under section 319 CrPC cannot be said to be proper.

The question now remains that whatever material exist, is sufficient to find out prima facie case against the petitioner, that too, of a degree more than required at the time of framing of charges. It is in view of the judgment of the Hon''ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab and Others etc. etc., AIR 2014 SC 1400 : (2014) CriLJ 1118 : (2014) 1 JT 412 : (2014) 1 SCALE 241 : (2014) 3 SCC 92 . Para 99 of the said judgment is quoted hereunder-

"99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Code of Criminal Procedure In Section 319 Code of Criminal Procedure the purpose of providing if ''it appears from the evidence that any person not being the accused has committed any offence'' is clear from the words "for which such person could be tried together with the accused." The words used are not ''for which such person could be convicted''. There is, therefore, no scope for the Court acting under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused."

The Hon''ble Supreme Court has departed from the requirement of evidence of the nature, whether may lead to conviction, if remains unrebutted for acceptance of the application under section 319 CrPC. In view of above, even for application under section 319 CrPC, what is required is the prima facie case more than what is required at the time of framing of charges.

The petitioner has pleaded his innocence in the transaction, as he is neither beneficiary nor the signatory of the documents. The position of fact could have been appreciated in favour of the petitioner but two order sheets dated 26.3.2004 and 31.3.2004 shows role of the petitioner as well. The petitioner was directed to place original agreement to sell and, as was directed, the original agreement to sell was produced before the court on 31.3.2004, thus it becomes clear that original agreement to sell was lying with the petitioner and had been produced by him before the trial court.

The facts have to be seen further in the light of the statements of PW-1 -Gaindi Devi, PW-2-Babulal, PW-3-Jagmal Singh, PW-4- Om Prakash and PW-5- Sanwar Mal. In the statement of PW-1-Gaindi Devi, role of the petitioner in the transaction has been mentioned. The petitioner has alleged to have produced fraudulent agreement to sell before the ACM court. It makes further reference of the order dated 26.3.2004 and subsequent order sheet dated 31.3.2004 and the application dated 1.4.2004. The facts aforesaid have been corroborated by other evidence.

Taking aforesaid to be a prima facie case more than what is required for framing of the charges, cognizance of offence has been taken. In the background aforesaid, I do not find any error or illegality in the impugned order dated 8.11.2013 so as in the revisional order. Hence, petition is dismissed.

However, any observation made in this order would not be taken as adverse to the petitioner or any one else during the course of trial or at the time of final hearing of the case. The trial court would conclude the trial on the evidence led by the parties without being influenced by the order passed herein. The order has been passed only to find out as to whether justification exist to accept the application under section 319 CrPC.